Australian Journal of Human Rights
Has the Racial Discrimination Act contributed to eliminating racial discrimination? Analysing the litigation track record 2000–04
This article examines the contribution of the Racial Discrimination Act 1975 (Cth) (RDA) to the elimination of racial discrimination. While anti-discrimination law is not the whole story of equality for racial and ethnic minority groups, it is nevertheless an important tool for individuals and groups who want to take action. An analysis of complaints and litigation from 2000–04 suggests that there is reason to be seriously concerned about the lack of effectiveness of the RDA in protecting equality rights. After 30 years it has not kept pace with the modernisation of equivalent laws in other countries.
The RDA was passed in 1975, with high hopes that it would assist in the elimination of racial discrimination in Australia. Thirty years later, it is appropriate to examine what has and has not been achieved through using the Act and to explore some of the reasons behind any limitations. This article first outlines the broader context of the achievements of the institutions set up by the RDA, and then examines the effectiveness of the legislation as an instrument against discrimination. It is not enough to look only at case law doctrine developed by the courts under the RDA in order to assess its success.1 It is also necessary to look at the extent to which it is actually used to provide a remedy for racial discrimination. Thus, all litigation reported under the RDA for the period 2000–04 is analysed to reach an assessment of it and its contribution to social change. In conclusion, the reasons why litigation has been largely unsuccessful are considered and it is argued that after 30 years, the RDA needs updating to bring it in line with developments in knowledge since it was passed and to overcome its apparent ineffectiveness.
What could the RDA achieve?
If an expectation of the RDA was that racially discriminatory behaviour, or privilege accorded to whiteness, would magically disappear, then that expectation was clearly disappointed. A more realistic expectation might have been that the Act would mark out a step — a significant step — along the path of Australian society towards greater enlightenment in dealing with its increasing ethnic and cultural diversity. Enlightenment would suggest rationality and fairness. We know, however, that issues to do with race, ethnicity and religious and cultural diversity have deep echoes in the subconscious, and concern fundamental issues about groups, membership, belonging, inclusion and exclusion (Banton 1994; Baker et al 2000). These issues relate both to construction of individual and cultural identity, and to power and control of resources in our society. Changing deep seated patterns of social exclusion and disadvantage by legislation is not an easy task, and the social impact of legal change cannot be assumed (see, for example, Cotterrell 1992; Anleu 2000; Lustgarten 1986). Although legislation cannot be expected to eliminate the attitudes that lead to xenophobia and racism, it should be able to challenge social practices that, visibly or not, allocate benefits and access to resources on this basis.
The RDA cannot be seen as the complete answer to racial or ethnic or indigenous disadvantage. The causes of that disadvantage are much more complex, and the solutions needed are much broader than a prohibition on discrimination. If, in the past, the ‘[l]aw has been more instrumental in facilitating racism than combating it’ (McRae et al 2003: 417), we need to ask whether in anti-discrimination legislation the law has ‘recast its role to become an effective instrument for fighting racism and achieving equality’ (above). Where law used to be part of the problem, is it now part of the solution?
Anti-discrimination laws are intended to perform the important function of providing an avenue for redress for individuals and groups in specific situations. They should not be the only line of challenge to racial disadvantage; education about racism and its effects is an extremely important component of strategies for social and cultural change. Positive steps must be taken to bring members of disadvantaged racial groups into the mainstream in both education and business — as the US has done successfully through Executive Order 11246, which requires equal employment opportunity in federal employment and employment by federal subcontractors.2 Positive action on racial or ethnic grounds has been neglected in Australia other than to a limited extent in public employment, for example in the Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth); the Anti-Discrimination Act 1977 (NSW), Pt 9A: Equal Opportunity in Public Employment; and some informal policy requirements in public service employment guidelines. Although they are only one element, anti-discrimination laws cannot be omitted, and they need to be effective. Unless remedies can actually be obtained, then the assurance of protection is deceptive.
The RDA was the first federal human rights law; it was adopted in 1975 after the Australian Bill of Rights Bill 1974 was discontinued. Racial discrimination was therefore given top priority when Australia decided to legislate to protect the right to non-discrimination. But can the RDA, product of a liberal legal system that treats individuals as autonomous and pays no attention to racial or cultural characteristics (see Thornton 1991 for a full critique), actually affect social structures of racism by taking notice of the allocation of benefits and burdens on the basis of race? What has the RDA been able to achieve for people outside the racial or cultural majority?
Since 1975, both sociological and legal knowledge about discrimination have grown enormously. Critical race theory has developed from critical legal studies. Social research over the last three decades has greatly developed knowledge about the experiences of people in minority groups and the psychological processes of inclusion and exclusion by those in a position to decide (Lawrence 1987). But despite a review at its 20th anniversary (Race Discrimination Commissioner 1995; Akmeemana and Dusseldorp 1995), there has been little legislative change to update the RDA, and thus little of this knowledge is reflected in the Act. Some ideas that have emerged in these areas over the last 30 years will be briefly introduced here to provide a structure for understanding the full potential of the legislation and thus its limitations.
Theorists have identified the idea of privilege as the reverse side of disadvantage, and it can be used to identify not just who loses through particular social practices, but also who benefits. Individual identities can be understood as combinations of attributes, some of which may confer privilege (such as whiteness: McIntosh 1988) while others confer disadvantage (such as femaleness: Kimmel 2004). Every individual is situated differently across the range of social classifications, such as ethnicity, sex, ability, education, sexual orientation and so on, with the associated degrees of privilege or disadvantage that attach to them. In addition, the operation of privilege may be quite different for the different classifications: race, for example, operates differently as a social structure than do gender or disability. For those who enjoy privilege in a certain area — through whiteness, maleness, normal ability and heterosexuality — that attribute is generally not visible. Thus, white people do not think of themselves in terms of race, nor do men in terms of gender. Those features are attributed to the ‘other’: non-whites and women. The inability of those in privileged groups to see their own privilege can make it very difficult for them to recognise disadvantage as something distinct from their own experience.
Racial discrimination law is a rough tool. All minorities (and the white majority) are treated the same by the law, which departs from the liberal model sufficiently to notice ethnicity as a general feature, but not the specific differences between different minority groups. The issues for ethnically and religiously diverse minority groups living in a purportedly multicultural Western society are quite different from those that affect indigenous communities dealing with the legacy of colonialism in Australia. But the RDA has no mechanism for recognising the different types of issues that must be addressed. Although both groups suffer exclusion from the mainstream of society to varying extents, ethnic minorities tend to be challenging their exclusion from participation in the mainstream of Western society. Non-English-speaking background (NESB) complainants are much more likely to bring employment discrimination cases, which suggests an attempt to lay claim to the benefits of Western society. For indigenous people, this cannot be assumed. Most racial discrimination cases brought by Aboriginal complainants concern discrimination in the provision of services, such as exclusion from pubs or from public housing (Michael v State Housing Commission), which reflect the indigenous community’s much more deprived economic and cultural position.
Nor does racial discrimination law have a mechanism for taking account of the fact that members of ethnic or cultural minority groups differ within their group in other important attributes, which may affect their experiences of discrimination. For example, an individual may be dealing with their unified experience as an Aboriginal woman or a disabled migrant, and may have difficulty compartmentalising and identifying the element that can be characterised as racial discrimination. Neither law nor policy can assume single or universal interests within a minority community. The diversity that exists within groups must be explicitly acknowledged so that the interests of women, people with disabilities and sexually diverse people within different communities are not lost sight of in policy or legal development. Legally, this is perhaps more difficult in the federal arena, where different Acts cover each separate ground of discrimination. Even at the State level, where diverse grounds of discrimination are dealt with in one Act (although they are generally not adequately integrated),3 the laws do not facilitate an approach that can deal with the reality of people’s experience. Since 2000, all federal discrimination complaints under the three (now four) anti-discrimination Acts are lodged and heard under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act), s 46PO. To this extent, a single hearing into a complaint across multiple grounds is facilitated. But it is not clear how proof of intersectional discrimination should be undertaken, and it would be open to a court inclined to a technical interpretation to insist that causation be separately identified under each of the Acts relied on.
To be effective, the aim of the law must be clear. Is it about identifying and penalising faulty behaviour and decisions; providing remedies for problems; or something else (Gaze 2002)? Australian courts have been very concerned about the impact on a respondent of being found responsible for racial discrimination and thus have been very reluctant to attach the label of discrimination without extremely clear justification. This has led to very narrow interpretations of the law, and in particular to a frequent inability to be satisfied that racial discrimination has been proved.4 However, the focus on individual ‘guilt’ displays an understanding of discrimination as the aberrant action of an individual, rather than as a systemic practice, and tends to downplay the effects of racial discrimination on minority groups and individuals, the elimination of which is the rationale of the law. A focus on the effect of discrimination through the experiences of members of disadvantaged groups might lead to less emphasis on blame, and more on ensuring that practices that create problems are changed. However, it appears difficult for members of (generally) racially privileged groups, such as the judiciary, to recognise the impact of racism on the less privileged (Gaze 2002).
The law’s limited ability to deal with discrimination as a systemic practice is confirmed by the lack of provision for systemic remedies that can reach beyond the scope of a particular case and address problematic practices that extend beyond that case. Where discrimination results from weaknesses in personnel practices that may well occur in other cases, there should be power to require an employer to change its employment practices generally. However, Australian anti-discrimination laws do not allow such remedies. The remedial powers of the federal courts, for example in s 46PO(4) of the HREOC Act, are limited to actions and orders concerned only with redressing the situations of the complainant in the particular case — there is no power to make a broader order. This is an area in need of reform if systemic discrimination is to be addressed.
The RDA has several functions: one is symbolic, to serve as a national statement that Australia condemns racial and ethnic discrimination. Another is to provide an official voice on these issues in community education and policy development. A third is to be effective as an instrument for remedying acts of racial discrimination. The Act’s symbolic value is undermined unless the law is also effective as an instrument against discrimination.
The RDA was a significant statement of Australia’s commitment against racism. Making racial discrimination unlawful was an important step. It reflected and made concrete the social change that was occurring at the time as the model of America’s civil rights movement had its impact around the world. In measuring change since then, it can be hard to differentiate between the effects of legal change and the general change in social understanding of race and ethnic diversity.
The Act’s symbolic effect was to change (or reflect the change in) the social environment to one in which racial discrimination is generally seen as unacceptable. However, the results of those changes are not necessarily enduring, as can be seen from the rise of Hansonism in the 1990s and the adoption by the Howard Government of many of its views in the scapegoating of indigenous communities and the rabid condemnation of ‘special favours’ for indigenous people. The targeting by Hansonism and the government of ‘political correctness’ amounted to a denial of the presence of racism in our society. The blaming of the oppressed by those who themselves were suffering under the economic transitions in modern Australia can be seen as a form of false consciousness or distraction, but has nevertheless had a powerful ongoing effect on politics, public policy and, possibly, the law. The compromised nature of the RDA as a symbol against racial discrimination is evident in several areas. The Government itself was responsible for explicitly rolling back the RDA by its amendments restricting claims and proceedings for native title under the Native Title Amendment Act 1998 (Cth): see Native Title Act 1993 (Cth), s 7.
An important element of the RDA’s achievements is the creation of the office of the Commissioner for Community Relations, who later became the Race Discrimination Commissioner. This was later supplemented (on the recommendation of the Royal Commission into Aboriginal Deaths in Custody of 1991) in the HREOC Act 1986 by the office of Aboriginal and Torres Strait Islander Social Justice Commissioner, who produces the annual Social Justice and Native Title Reports. These officers have the power under HREOC Act ss 10, 11 and 20 to undertake research, community education and policy development. They have provided an essential presence in public debate to ensure that the public agenda remains open to views that may have more difficulty in gaining a hearing. The importance of this function must not be underestimated. Within the limits of its resources, HREOC through its member Commissioners, including the Human Rights Commissioner, has undertaken many vital inquiries that have kept these issues on the public agenda. From Bringing Them Home (HREOC 1997), to Bush Talks (HREOC 1999), Face the Facts (HREOC 2003), the Alcohol Report (HREOC 1995), the Water Report (HREOC 1994, 2001) and the Toomelah Report (HREOC 1988),5 the Race Discrimination, Social Justice and the Human Rights Commissioners have undertaken essential steps in the process of developing our knowledge about the conditions of existence of indigenous people and asylum seekers in Australia today. More recent and equally important work is found in the reports on Children in Immigration Detention (HREOC 2004a) and the experience of Muslims in Australia (HREOC 2004b), and in HREOC’s intervention in human rights litigation, including that concerning the detention of asylum seekers.
The RDA was originally given instrumental effect through its prohibitions on racial discrimination in ss 9–17. Section 9 prohibits discrimination by private and public actors in a very wide range of situations based on art 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Sections 11 to 15 contain specific prohibitions on less favourable treatment of people in certain defined areas of activity. Section 10 provides that laws of the Commonwealth, States and Territories should not prevent the equal enjoyment of any group rights on the basis of race and must ‘equalise up’. Subsequently, s 18C, making racial vilification unlawful, was added in 1995. Each element is integral to the effect of the RDA in combating racial discrimination and disadvantage. Sections 9 and 11–18C provide for a civil claim to be brought in respect of discrimination.
The prohibition of discrimination in s 9 is the most broadly worded prohibition in any Australian anti-discrimination law. Drawing on art 1 of CERD, it prohibits:
... any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life [within art 5 of CERD, which is a Schedule to the Act]. [Emphasis added.]
The RDA was passed before the adoption in Australia of definitions of indirect discrimination based on those in the UK Race Relations Act 1976 and Sex Discrimination Act 1975, which attempted to codify as indirect discrimination the ‘disparate impact’ form of discrimination recognised by the US Supreme Court in Griggs v Duke Power Co. There was concern that s 9 left unclear exactly what elements had to be proved by a complainant to make out a claim. It was also not clear whether the ‘purpose or effect’ distinction, taken directly from international law, tracked the direct/indirect discrimination concepts found by then in all other Australian anti-discrimination laws. If not, it was not clear how a case of indirect racial discrimination could be established. The section was amended in 1990 to include an explicit provision in standard form, s 9(1A), prohibiting indirect discrimination.
Section 10 provides for ‘rights to equality before the law’ of a kind found elsewhere in constitutional equal protection guarantees. Where under Commonwealth or State law, members of one group:
... do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
This provision applies to legislative discrimination against racial or ethnic groups. When such discrimination occurs in State laws, they will be invalid to the extent of the inconsistency with s 10, under s 109 of the Constitution. The situation is less clear with Commonwealth laws passed after the RDA, but which legislation will prevail where the two are inconsistent will come down to a question of statutory construction. It was because it was thought that s 10 might override later inconsistent laws that it was necessary to be explicit in the Native Title Amendment Act about limiting the effect of the RDA on native title.
Sections 11–15 of the RDA contain independent prohibitions on less favourable treatment ‘by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person’ in the areas of access to places and facilities (s 11); land, housing and other accommodation (s 12); the provision of goods and services (s 13); the right to join trade unions (s 14); and employment (s 15). Although these provisions stand by themselves as a basis for a discrimination claim, and are apparently used as a basis for complaints to HREOC, there is very little reported case law or academic analysis of them, and virtually none giving specific consideration to their interpretation.6 Similar to legislative provisions on direct discrimination, the complainant must prove that any less favourable treatment was ‘by reason of’ race. This has often proved to be a stumbling block in racial discrimination cases, as courts have been very reluctant to infer racial motivation in the absence of firm evidence. 7
Finally, s 18C, adopted in 1995, makes it unlawful to
... do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Exceptions to this provision exist for artistic and scientific purposes or for fair comment in the public interest. In this article, I will refer to this as the ‘racial vilification provision’.
Measuring the ‘success’ of anti-discrimination laws is difficult. The use of raw statistics can be ambiguous: it is not clear whether an increase in complaints indicates better public knowledge of discrimination matters and what can be complained about, or an increase in discriminatory behaviours in the community (Gaze 2002). In race, as in sex discrimination, it is likely that the elimination in some areas of the more obvious forms of discrimination (as potential respondents have learned that race cannot be explicitly referred to) has been followed by more covert forms of discrimination (including unconscious discrimination), which are difficult to prove to a court’s satisfaction. In other areas, overt racism is alive and well. Other factors that could be used as a measure of the law’s success might include the development of clear and reasonably strong case law on discrimination, as well as outcomes in reported cases that indicate appropriate remedies for the harms done. This paper examines the second of these factors before commenting briefly on the first.
Assessing the RDA’s success at an instrumental level requires attention not only to the terms of the legislation and how it has been interpreted by the courts, but also to the actual use made of it and the outcomes of decided cases. All lawyers are familiar with the example of the pyrrhic victory where a complainant may win the legal point but lose the case because he or she failed to prove it to the satisfaction of the court or tribunal. A classic example is the early sexual harassment case of O’Callaghan v Loder. While the complainant won the legal point that established that sexual harassment fell within the prohibition of sex discrimination, she lost her claim because she could not establish that she had made it clear to the respondent that his approach to her was unwelcome (this element was changed in later statutory definitions of sexual harassment). Such a case may be a legal ‘success’ in establishing doctrine, but a practical failure because the complainant receives no remedy if proof cannot be made. Assessment of legal doctrine alone is not sufficient to make a judgment about whether a law is successful in achieving its aims. Because the dearth of positive case outcomes in federal racial discrimination law has not received the attention it deserves, this paper focuses on analysis of the statistics, rather than doctrinal analysis, which is referred to only as necessary to contextualise the results.
Statistics concerning the utilisation of the federal anti-discrimination laws raise concerns about its effectiveness in cases of racial discrimination. This is not a new problem and the limited effectiveness of the RDA was examined by Thornton in 1993 (Thornton 1995: 90–1). Most complaints of discrimination in Australia are lodged under State laws, especially since enforcement of the federal laws was moved to the Federal Court and Federal Magistrates Court (referred to here as ‘the federal courts’) in April 2000 by the Human Rights Legislation Amendment Act (No 1) 1999 (Cth), introducing the award of costs against the unsuccessful party.8 In most State anti-discrimination systems, complaints are heard in tribunals that operate on the basis that costs are awarded only if the conduct of a party is unreasonable. The possibility of losing their case and being liable to pay the costs of the respondent, especially where that respondent may have spent a great deal on the case by employing senior lawyers, can only be a strong deterrent for many impecunious complainants, especially as legal aid is virtually unavailable for discrimination claims at both federal and State levels.
There should be concern, however, if the federal law is unattractive for complainants or fails to provide a realistic remedy, as its provisions — based on CERD — are stronger in many ways than State laws and less hedged about with exemptions. It should be an attractive avenue for discrimination complainants, and the Commonwealth needs to ensure this in order to discharge its responsibility under art 2(1)(d) of CERD to ‘prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization’.
Because of the changes to the enforcement of federal law, this analysis examines data from July 2000 after the new system was in operation (but while it was still in its teething stage) until June 2004.
As Table 1 shows, the number of complaints lodged with HREOC on the ground of race was only 15 per cent or less of all claims lodged under the three discrimination Acts and the HREOC Act. Data analysed in this table is sourced from the annual reports of HREOC for the years in question. The source of data is Ch 2 in each annual report, titled ‘Complaint handling section’, which changed to Ch 4 in 2003–04. Tables relating to the RDA are found, for example, at 2002–03 Tables 7, 8, 9 and 13. Not all percentages of data in the table will add up to 100 per cent, as only categories of interest to this research have been included, omitting small percentages for complainants of unknown origin or group complaints.
The number of racial discrimination complaints lodged has fallen substantially over the last four years. Most racial discrimination complaints are brought by men, and most complainants are of non-English speaking background. Indigenous people’s complaints involving racial discrimination represented only 5 per cent (4 per cent in 2002–03) of the total number of federal discrimination complaints. This limited use of the RDA by indigenous people is consistent with earlier years, and must be of concern. While the proportion of all racial discrimination complaints comprised by indigenous people’s complaints of racial discrimination exceeds the proportion of indigenous people in the population, one would not expect many claims of racial discrimination to come from the white majority, so this is likely to be an under-representation of indigenous complainants. The Act relies for its enforcement solely on actions brought by individual complainants, but this system contains multiple disincentives for minority group members who have restricted access to mainstream social institutions such as the legal system.
Data analysed in Table 2 is sourced from the annual reports of HREOC: 2000–01, Table 16; 2001–02, Table 16; 2002–03 Table 13; and 2003–04, Table 14.
Table 2 shows the main areas in which complaints have been brought. Only areas of interest to the current discussion have been included, and a single complaint may involve more than one area, so the numbers given cannot be reconciled with the number of complaints in previous tables. Although employment complaints have not increased in number, they represent an increasing proportion of areas, while the number of racial hatred cases has varied considerably, and the number of s 9 claims has remained fairly constant since 2001.
Data analysed in this table is sourced from the annual reports of HREOC: 2000–01, Tables 17, 20, 24 and 29; 2001–02, Tables 17, 20, 24 and 29; 2002–03, Tables 16, 20 and 25; and 2003–04, Tables 14, 17, 21 and 26.
Table 3 shows the rate of settlement of complaints at conciliation for complaints finalised during the year on race, sex and disability grounds. The data is for cases that are settled by agreement at conciliation. Matters that cannot be agreed are terminated under s 46PH of the HREOC Act. The rate of settlement at conciliation for race complaints was around 15 per cent in 2001–02 and 2002–03, while for sex and disability discrimination claims it was 40 per cent or more. Conciliated settlements in racial vilification complaints were consistent with or below the proportions settled in racial discrimination.
In 2003–04, the proportion of race complaints settled at conciliation rose to 24 per cent, while for sex discrimination the rate was 47 per cent and for disability discrimination it was 43 per cent. However, this percentage increase for settlements in race matters did not reflect an increased number of race complaints settling in that year. The total number of race complaints finalised (and lodged) during the year was lower, so settlement of a similar number of matters led to a higher percentage result. It is doubtful whether this indicates any significant increase in the strength of race discrimination complainants’ negotiating power or success. Instead, the drop in the number of complaints may reflect some loss of faith in the system and a preference to proceed in the State systems. It can be seen that a consequence of the very low rate of conciliation of race complaints is a very high level of terminations, leaving the complainants with only the option of taking court action if they still want to pursue their claims.
The reasons for the discrepancy in rates of conciliated settlement are not clear, and HREOC has not discussed them in its reports. Possible explanations could include that more unmeritorious claims are brought in the area of race; that claims of racial discrimination are more adversarial and more hotly contested than sex or disability claims; that race complaints are launched with less substantive basis; that race complainants are in a significantly weaker position; and that racial discrimination is harder to prove than sex or disability discrimination, even for meritorious complainants. Further detailed research would be necessary to explore the reasons for this difference.
The fact of settling does not indicate how adequate the settlement was: where complainants are in a weak position, they may be grateful for any settlement offered, in order to avoid a hearing in the federal courts. The Conciliation Register containing details of selected conciliated outcomes, published by HREOC on its website9 for the years 2002–03, lists 47 conciliations in racial discrimination complaints for those two years, compared to 284 in sex discrimination and 285 in disability discrimination. Of the 25 of these matters that concerned employment, many settlements either involved terms that were not disclosed, or did not include any money compensation. Where financial compensation was awarded, it was under $1000 in three cases, $5000 or under in nine cases, $10,000 or under in two cases and above that in only one case, which was $37,088. This level of compensation is very low, even allowing for the fact that settlements involving greater compensation may occur and just not be known to HREOC or amounts may not be disclosed in the register.10 It provides little incentive for individuals to undertake the unsupported effort needed to pursue a claim through in the face of a set of precedents that are strongly against them. It is, however, greater than the amounts that have been obtained in litigation under the RDA. Over the years since 2000, damages have been awarded by the courts in only one racial discrimination matter (CCH 1984–2005, para 89-960, case 368), namely Carr v Boree, which is discussed below. (Low damages have been awarded in a few racial vilification matters, also discussed below.)
The total number of cases terminated by HREOC under the three federal anti-discrimination Acts in 2002–03, and thus eligible to proceed in the federal courts, was 587, and in 2003–04 was 501 (of which 195 and 111 respectively were under the RDA). It is virtually impossible to trace litigation rates or success rates thereafter, as there is inadequate published data on the number of proceedings issued in the courts on the major grounds of race, sex or disability. HREOC does not monitor the further progress of complaints that it terminates, and the Federal Court Annual Report does not separately report statistics on unlawful discrimination cases. In 2003–04 the number of unlawful discrimination claims lodged in the Federal Magistrates Court was 96 (Federal Court 2004, Ch 3 Fig 12). The Federal Magistrates Service Annual Report 2002–03 noted that in that reporting year 118 cases of unlawful discrimination under the three Acts were lodged, and this constituted 65 per cent of the cases lodged in the federal jurisdiction, but did not identify the cases according to ground or Act — the RDA, the Sex Discrimination Act 1984 (Cth) (SDA) and the Disability Discrimination Act 1992 (Cth) (DDA). On this basis, the total number of court proceedings issued on all grounds of unlawful discrimination brought in the federal system would be around 182 (of around 587 terminated cases), including 64 matters issued in the Federal Court, which is 31 per cent of the matters that could issue proceedings. If racial discrimination claims amounted to, say, 15 per cent of those issued, there would be 27 matters issued for the year. Many matters in which proceedings are issued will never proceed to adjudication because they may be settled or abandoned.
When litigation in the federal courts is analysed by examining court decisions through either Austlii or the court websites,11 the rate of litigation concerning race complaints appears to be proportionately higher than in sex and disability cases. From the transfer of enforcement from HREOC to the federal courts in April 2000 until the beginning of September 2004, there have been 18 hearings in sex discrimination matters, 38 in disability discrimination matters and 35 in race discrimination matters in the Federal Court, including the Full Court (excluding eight native title cases and one immigration matter, none of which involved complaints to HREOC). These include procedural as well as substantive matters, and some cases have involved multiple hearings (for example, procedural and substantive) or a substantive hearing and an appeal. This could be explained by intransigence on the part of racial discrimination complainants who may not have a good case; by some difficulty or weakness they face in negotiating settlement or proving their case, compared to sex or disability discrimination complainants; or by other factors.
Of the 35 hearings in race matters, two raised s 10 against government actions or legislation, which does not require a complaint of discrimination under the RDA.12 One of these cases, Clark v Vanstone (overturned on appeal by the Full Federal Court), carries an important message of equity in treatment for indigenous organisations. Of the hearings in racial discrimination matters under s 9 of the RDA, three mainly concerned other grounds (sex and disability), 10 concerned employment, one concerned education and one concerned the provision of goods and services. There were 14 hearings in matters concerning racial vilification.
Overall, complainants were successful in only six of the 35 hearings, but only four of these successes concerned substantive outcomes of the cases. These four included the Clark case under s 10 and three racial vilification matters under s 18C. There were no successful discrimination claims at all under s 9 or ss 11–15 during this four year period in the Federal Court.
Of the 10 hearings in matters concerning employment discrimination, eight involved an unrepresented complainant called Paramasivam in a series of cases that appeared to have little chance of succeeding and in which no substantive claim was presented. The remaining two hearings were in the case of Sharma v Legal Aid Queensland, in which a claim of discrimination in employment failed in the Federal Court and on appeal by the Full Federal Court on the basis that Sharma had failed to prove that any less favourable treatment that he experienced was because of race. (Doctrinal issues of proving racial discrimination are considered briefly below.)
The three racial vilification cases that were successful had all been underway before 2000, when HREOC was still the adjudicator, illustrating the delays that made enforcement by HREOC relatively ineffective. Jones v Scully was an application to enforce an HREOC determination, which involves a hearing de novo of the claim. The complainant succeeded and was awarded an injunction and costs, but no damages by Hely J. Jones v Toben also involved an application to enforce a HREOC determination in 2000, upholding a complaint made in 1996 of racial vilification over the internet (the Adelaide Institute case). Branson J granted the complainant summary judgment in the application and awarded an injunction and costs, but no damages. This judgment was upheld on appeal by the Full Federal Court in Toben v Jones, thus accounting for two of the decisions in which complainants succeeded in racial discrimination matters. Both of these cases involved an applicant representing Jewish community organisations in Australia. In McGlade v Lightfoot, a complaint made in 1997 had been successful before HREOC in 1999 but was set aside on review by the Federal Court in 2000 and then re-heard and finally upheld in the Federal Court in 2002 (as the jurisdiction of HREOC was then obsolete). Again, the orders made were only a declaration that the Act had been breached and costs against the respondent. In the interests of good race relations, Carr J did not believe an award of damages was appropriate. A reading of the procedural history of each of these successful claims leaves no doubt about the level of commitment and persistence required over years to successfully pursue a racial vilification claim.
Thus, to some extent the s 10 requirement for equality in enjoyment of legislative right, and the racial vilification provisions in s 18C, should be seen as the more successful aspects of the RDA. However, several racial vilification claims were also unsuccessful in the Federal Court during this period, and costs were awarded against unsuccessful complainants in most of these, including Creek v Cairns Post, Hagan v Trustees of the Toowoomba Sports Ground Trust (the Nigger Brown grandstand case) and Sharma v Legal Aid Queensland.
In the Federal Magistrates Court during the period from April 2000 to September 2004, there were 32 hearings in cases involving sex discrimination, 42 in disability cases and 24 in race cases, including procedural as well as substantive hearings. In only three cases was a substantive claim based on race upheld. Two of these were racial vilification claims. In Horman v Distribution Group, a vilification claim relating to calling the applicant ‘wog’ at work was upheld, although most emphasis in the case was on sex discrimination and sexual harassment. In McMahon v Bowman, damages of $1500 plus costs were awarded to the complainant in a situation involving racial abuse of an indigenous man by a neighbour. The successful claim of racial discrimination in employment in Carr v Boree Aboriginal Corp was brought under s 15, after a non-indigenous person employed under a community development program by the Boree Aboriginal Corp (BAC) was overtly treated less favourably on the ground of race than were indigenous employees after a change of board membership led to a decision that non-indigenous people should not be employed by BAC. In the face of multiple non-appearances by BAC, damages were assessed by Raphael FM at $11,848.61 for economic loss; $7500 for general damages of hurt, humiliation and distress (in the absence of medical evidence); and $11,000 for costs — a total of $30,348.61. Because of the overt nature of the treatment, flowing from a change of policy by BAC on employing non-indigenous people, proof of the racial basis was not a difficulty in this case. Because the respondent indigenous organisation did not appear, it did not attempt to justify its decision as a special measure.
To summarise this analysis of litigation over more than four years from 2000 to September 2004 under the RDA, the claims that were successful on the substantive issue were Clark v Vanstone, Jones v Scully, Jones v Toben and McGlade v Lightfoot in the Federal Court and Horman, McMahon v Bowman and Carr in the Federal Magistrates Court. Of these, one case involved reliance on s 10, five were racial vilification claims under s 18C and only one involved a successful discrimination claim under s 15. That was the Carr case, in which the complainant was a non-indigenous person complaining about the actions of an indigenous organisation, and the discrimination was overt. Damages in Carr were well above any other damages that had been awarded.
Unless there was virtually no discrimination in employment on the ground of race in Australia during the four years 2000–04, this outcome must raise serious concerns about the role of the RDA in claims of discrimination under s 9, and in particular in the important area of employment discrimination. Since it is unlikely that no racial discrimination occurred, and in view of the data discussed above concerning the low rate and value of conciliated settlements in race matters, the implication of these statistics is that people affected by racial discrimination do not find the RDA effective to provide remedies for and eliminate discrimination.
Of the five successful racial vilification claims, two were brought on behalf of the Council of Australian Jewry (Jones v Scully and Jones v Toben) against anti-Semitic publications, and one concerned an NESB employee at work, while two involved complaints by individual indigenous people, one against a Senator (McGlade) and the other essentially a neighbour dispute (McMahon). While there are problems in this area of law, at least some cases have been able to succeed. However, in all three successful Federal Court cases, the claims that had taken many years of persistence by the complainant to pursue resulted in an order with no damages and with costs awarded only on a party–party basis, which would not usually cover the full costs of running the case. Two of the five racial vilification cases were applications to enforce an HREOC decision and three involved complaints lodged years before 2000, so in the four years covered by this study there have been only two successful racial vilification claims brought through the whole system since enforcement moved to the federal courts in 2000, McMahon v Bowman (2000) and Horman (2001).
These statistics suggest that reliance on enforcement of discrimination and racial vilification laws by individual complainants is ineffective. If individuals are to bring actions to enforce their claims, they must have a reasonable chance of succeeding and getting a reasonable return for their efforts. Current incentives are inadequate, and may well be negative. Where community organisations exist, the benefits of enforcement (for example of racial vilification) may allow the costs to be absorbed by the community through its organisations. Another example of this is Islamic Council of Victoria v Catch the Fire Ministries Inc (2004), a successful claim of religious vilification under the Racial and Religious Tolerance Act 2001 (Vic). However, indigenous people appear to lack the types of community organisations that would enable them to establish effective precedents of the type established in the Jones cases, and adequate funds to allocate them to what might appear a luxury compared to other areas of need. This suggests the need for some form of institutional or strategic organisational enforcement.
What are the problems with proving discrimination?
Indirect discrimination claims have been used very rarely in the area of racial discrimination, perhaps because individuals often feel as though their treatment is not the result of general rules that disadvantage them but of the respondent’s response to their visible difference, such as skin colour. That there is an important place for indirect discrimination claims on the grounds of race is clear from the school closure case of Victoria v Sinnapan (No 2) (1995) (and see Tahmindjis 1995). But virtually all cases of racial discrimination in Australia have been brought as direct discrimination claims, where the complainant bears the onus of proving that any less favourable treatment suffered was ‘based on’ (RDA s 9(1) and many State laws) or ‘by reason of’ (RDA ss 11–15) or ‘because of’ (RDA s 18C) their race.
What could be the reasons for the apparent failure of the RDA’s prohibitions on discrimination under s 9 and ss 11–15? Answers could be sought in the contextual difficulty for indigenous people and those of non-English speaking background in using the legal system, which have changed little since 1987 (Moss 1987). These include reliance on individual action to enforce the law and lack of institutional support (including access to expert legal advice) for those individuals who do seek to pursue a complaint; the procedural disincentives to bringing court action; inadequacy of damages for those who succeed; and the state of doctrine in the area, through both the courts’ development of doctrine and Parliament’s failure to update anti-discrimination laws in view of defects in it that have emerged.
There is not scope here to discuss all these factors, but some comments can be made on the doctrinal reasons for the striking lack of success (and absence) of racial discrimination claims other than racial vilification. In such cases the complainant must prove that any less favourable treatment was ‘by reason of’ race. Although the High Court has held that there is no requirement to prove conscious intention in discrimination cases, nevertheless, the requirement to find that the action was ‘by reason’ of race still requires courts to be able to reach the conclusion that race was a causal factor in the action or decision challenged: per McHugh J in Waters v Public Transport Corp at 401. This has often proved to be a stumbling block in racial discrimination cases, as courts have been very reluctant to infer racial motivation in the absence of firm evidence. Proving the reason for an action or decision that exists in another person’s mind, where all the evidence is controlled by the other person and they are not required to give any reason, is very difficult (Gaze 1989). Hunyor (2003) has recently reviewed the law on proving direct discrimination in the context of concern about the paucity of successful racial discrimination cases. He examined both the requirement to prove the ‘true basis’ for the action, and the applicability of the Briginshaw standard of proof, according to which the civil standard of proof must be applied with due regard to the seriousness of the allegation being proved (in the Briginshaw case, the allegation (of adultery) at that time involved moral turpitude). Because courts have regarded racial discrimination as a serious finding, they have been reluctant to infer it. However, as Weinberg J said in Macedonian Teachers Association of Victoria Inc v Human Rights and Equal Opportunity Commission (affirmed on appeal by the Full Federal Court), the Briginshaw standard is not applicable to all racial discrimination matters. Many cases of racial discrimination will not raise an issue of moral condemnation — for example, cases involving a claim of unconscious discrimination — so the Briginshaw standard should not be applied. Hunyor concluded that some change to the proof requirements was necessary to assist complainants to discharge their burden of proving that race was the reason for any less favourable treatment. At the least, there is a need for some requirement for the respondent to provide evidence about the reason for their action. Until such changes are made, direct racial discrimination will remain very difficult to establish in Australia under all anti-discrimination laws.
In Sharma v Legal Aid Queensland, for example, the claim of discrimination in employment under s 15 failed and this failure was affirmed on appeal. The Court was simply unable to be satisfied that the reason for the less favourable treatment Sharma suffered was race.13 No guidance was given about what, if any, evidence Sharma could have produced (apart from a direct admission by the employer) that would have been sufficient. This failure to meet the onus of proof of discrimination is echoed in many racial discrimination claims brought in the State tribunals as well (see, for example, Dutt v Central Coast Area Health Service; Department of Health v Arumugam; and Monash University v Kapoor (1999). Courts have insisted that the complainant must prove the racial basis, which is virtually impossible without direct evidence of it.
As the statistics considered above show, racial discrimination cases have rarely succeeded under the RDA since 2000, and this pattern is not unlike that of earlier years. The evidence cited above about the low rates of conciliation and low compensation amounts agreed in conciliation tends to confirm that this may be due to the weak position in which complainants of racial discrimination find themselves. It is not surprising that few complaints are brought and even fewer complainants are prepared to litigate such a case — especially in the federal courts, where costs are awarded against the losing party. It appears that using the RDA (or, in many cases, State legislation) is just too risky for individuals, especially as damages awards have been so low and provide little incentive to litigate.
Among the very few cases in which an infringement of s 9 has been found by a court since the RDA was passed in 1975 are Gerhardy v Brown (against an indigenous organisation, although the less favourable treatment was held to be exempted as a special measure) and Macedonian Teachers Association of Victoria v Human Rights and Equal Opportunity Commission. Neither is an employment case. The spectacular lack of success of racial discrimination claims in employment under s 9 must raise real concerns about the effectiveness of the RDA and its ability to have any significant effect on racial discrimination in Australia. It is an area that needs serious consideration and reform by the government. In comparable countries overseas, much more assistance is given with discharging the onus of proof that race was the basis of the disputed decision (see, for example, the UK reforms mentioned in the Conclusion below).
By contrast, vilification cases appear easier to prove than discrimination claims under s 9 or ss 11–15 because they do not require the complainant to prove the reason or basis of the respondent. Vilification claims are not unproblematic, as some courts have had difficulty taking seriously the concerns expressed by complainants, for example in the Hagan case. Despite the rejection of his claim by both the Federal Court and the Full Federal Court, Hagan’s subsequent complaint to the CERD Committee was upheld:
... the Committee considers that that use and maintenance of the offending term can at the present time be considered offensive and insulting, even if for an extended period it may not have necessarily been so regarded. The ... Convention, as a living instrument, must be interpreted and applied taking into the circumstances of contemporary society ... The Committee recommends that the State party take the necessary measures to secure the removal of the offending term from the sign in question. [Hagan v Australia, CERD Committee 2002, para 7.3–8.]
While its decision is not enforceable and does not directly affect Australian law, it is at least an indication that Australian racial discrimination law is out of step with international understandings of racial discrimination.
Claims relying on s 10 have been advanced against the government in respect of legislation that is claimed to limit the enjoyment of rights by one group in comparison with others. No complaint to HREOC of discrimination or requirement to undergo conciliation is necessary. Nor is it necessary to establish that race was a reason for the different treatment, merely that rights are enjoyed to a lesser degree. Section 10 has provided an extremely important series of practically and politically significant decisions, beginning with Mabo and leading on to Western Australia v Ward and Clark v Vanstone. These cases have been of enormous significance and have protected some fundamental rights of indigenous people against government incursions. They illustrate the potential value of a constitutional equal protection provision, as well as the disadvantage of not constitutionalising this protection. There was no constitutional barrier to the government legislating to override s 10 in the Native Title Act amendments passed in 1998. Section 10 has potential for further development and use — for example, through pre-emption under s 109 of the Constitution of inconsistent, racially unequal, State laws. The extent of this challenge may depend on whether the wording in s 10 of ‘by reason of or of a provision of’ extends to cover laws that are not on their face discriminatory but in operation have a much harsher impact on one racial group, such as mandatory sentencing laws. In Bropho v Western Australia, a constitutional challenge under s 109 is being brought against a State law relying on ss 9 and 12, although no substantive decision has yet been reached.
In America, Delgado (1991: 1393, quoted in McRae et al 2003: 438) has argued that since racism is a normalised part of (American) society, it is only ‘extreme and shocking’ instances of racism that are recognised as such by law and seen as deserving a remedy, while the ‘business as usual types of racism people of colour confront every day’ are not addressed, at least in part because they are not visible or of concern to those who are unaffected by them. The state of doctrine in Australian racial discrimination law suggests that this may also be the case in Australia. In particular, our judges — as part of the ‘normal’ racialised mainstream, almost universally white — understand themselves as racially neutral, but seem unable to recognise racial discrimination either at all, or except in overt or very severe cases. As Thornton (1995: 83) said, there is a ‘disjuncture between racism and a cognisable act of discrimination’.
The foundational assumptions of neutrality by majority group judges have been reinforced recently in New Zealand, where it was reported that the Government was taking legal action to disqualify a Maori judge from hearing a major land rights case on the basis that her tribal affiliation made her unsuitable as she could not remain impartial (Harvey 2004, and similar issues discussed in the context of gender, Graycar and Morgan 2002: 56–65). However, majority group (white) judges are not regarded as biased in deciding such matters.
The paucity of successful claims of racial discrimination under the RDA and the common failure of claims to meet the onus of proving race as the basis of the less favourable treatment suggest that in Australia, as in America, ‘racial subordination is an ordinary, normal part of our social landscape’, and that as a result racial discrimination, and particularly a racially discriminatory basis for acting, is difficult (for courts) to recognise.
The limited success of racial discrimination legislation indicates the difficulty of using law as an instrument to achieve social change. It is an issue that will be of increasing significance in Australia, as we need effective laws against discrimination on all unfair grounds. Our anti-discrimination laws have made some significant gains for women and people with disabilities (even though substantial problems remain), but it is much less clear that they have made gains for those affected by race and related discrimination.
In particular, anti-discrimination law has been unavailing against the situation of the indigenous people, where the problems are so deep that mere anti-discrimination legislation is hardly used. In this area the major achievements of the RDA are the opening up of native title through s 10 and the Mabo litigation, and to some extent the area of racial vilification.
The aim of racial discrimination law must be remedial. Courts must take account of the experience of the disadvantaged, and not consider primarily the position of the respondent. The UK has reformed its proof processes, providing a questionnaire procedure whereby individuals can collect information from potential respondents when a complaint is made. Also, a new provision in s 54A(2) of the Race Relations Act 1976 (UK) provides that once facts are proved from which, in the absence of explanation, it could be inferred that racial discrimination occurred, the onus is on the respondent to prove that race was not the ground. The enactment of a similar provision in Australia would stop the onus and standard of proof from being used against complainants as they are now, and could make the law less of a paper tiger. A similar onus on respondents is in place under s 170CQ of the Workplace Relations Act, so it is not foreign to Australian law. This acknowledges the difficulties of proof for complainants who are in a position where they do not have the evidence to make out a case. This is particularly important where judges — many of whom have never experienced racism and may not easily recognise it — insist that the complainant must prove that racism affected them, but are reluctant to draw inferences from what evidence can be provided. Courts have still not made it clear how the connection with race can ever be proved in the absence of an admission by a respondent.
In addition, the UK has acknowledged the need for positive systemic measures to eliminate racial discrimination and has introduced a positive duty on all public sector organisations to promote racial equality and to consider the racial impact of their actions and policies before acting: Race Relations (Amendment) Act 2000. While this is a good start, there seems little reason not to apply such a duty to large private sector organisations as well, perhaps through a much broader and stronger equal employment opportunity program.
On any assessment, the RDA has not lived up to its symbolic promise. It has proved to be weak as an instrument in fighting racial discrimination, except against government legislation where s 10 can come into play. It is well past time for a thorough review and updating of the law, unless we are to accept that the law can’t or won’t do anything about racism.
* Associate Professor of Law, Faculty of Law, University of Melbourne. Much of the research on which this article is based was carried out while I was Associate Professor of Law in the Faculty of Law, Monash University. I would like to thank Simone Cusack for her research assistance. This article draws on data collected for the project Enforcing Human Rights in Australia: An Evaluation of the New Regime, being undertaken with Professor Rosemary Hunter of Griffith University with funding from the Australian Research Council and the Law and Justice Foundation of NSW.
1 I have argued elsewhere (Gaze 2002) that the narrowness of judicial interpretations of anti-discrimination case law seriously impairs its effectiveness as a mechanism to reduce discrimination.
2 The Executive Order is enforced by the Office of Federal Contract Compliance in the US Department of Labor; see <www.dol.gov/esa/ofccp/aboutof.htmminority>.
3 At the federal level, there has been little case law or consideration of how a court would deal with a claim of combined sex and race discrimination, but in Djokic v Sinclair & Central Qld Meat Export Co Pty Ltd, damages were awarded separately under the RDA and the Sex Discrimination Act 1984 (Cth) for the harassment and discrimination suffered by the complainant at work, without any real discussion of how these issues should be resolved. To require a complainant to prove which element is sex and which is race discrimination would be impossible and would not reflect the wholeness of the experience of the individual affected. A similar case successfully brought under the Equal Opportunity Act 1984 (Vic) is Fares v Box Hill TAFE. At the federal level, Dao v Australian Postal Commission suggested there could be problems in running a claim on both grounds together. The case was ultimately dealt with as racial discrimination, which omitted the element of sex discrimination. See Astor 1995.
4 For further discussion, see below under the heading ‘What are the problems with proving discrimination?’.
5 All except the Toomelah Report are available at <www.hreoc.gov.au/publications/index.html>.
6 Bropho v Western Australia concerned a strike out motion in relation to claims that a WA Act was inconsistent with ss 9 and 12 (access to land) of the RDA. Analysis centred on whether a complaint to HREOC is an exclusive remedy for breaches of the RDA. Nicholson J held that it is arguable that a claim of constitutional inconsistency between the RDA and a State law can be heard under s 109 of the Constitution without a complaint having been made to HREOC. Only preliminary procedural issues were decided, and no interpretation of s 12 was undertaken. Claims relying on s 15 (employment) have been brought in the Federal Magistrates Court, although all have failed: Batzialas v Tony Davies Motors; Trindall v New South Wales Commissioner for Police; Charan v Commonwealth Insurance Ltd; and Chau v Oreanda Pty Ltd. In the Federal Court case of Sharma v Legal Aid Queensland, [AQ: 2001 or 2002?] Keifel J did not discuss in detail all elements of s 15, and appeared to treat the claim as being made under ss 9 and 15 jointly. No decision has included any detailed discussion of the provisions. There were occasional references to these sections by HREOC (see, for example, Ardeshirian v Robe River Iron Associates, but again little discussion of their interpretation.
7 Among reported cases, the majority of racial discrimination claims are unsuccessful under all Acts: for example, Dutt v Central Coast Area Health Service; Department of Health v Arumugam; Monash University v Kapoor; and Sharma v Legal Aid Queensland (2001 and 2002). One possible explanation is that racial discrimination in particular is regarded as much more socially unacceptable than sex, sexuality or disability discrimination. This has, paradoxically, tended to make Australian tribunals and especially courts very reluctant to make such findings.
8 Complaint numbers under the State systems are much higher than in the federal system. In Victoria, complaints of racial discrimination constituted 219 (7 per cent) and racial vilification 30 (1 per cent) of the 3186 complaints lodged with the Equal Opportunity Commission in 2003/04; religious belief discrimination accounted for 51 complaints and religious vilification for 11 complaints (a total of 2 per cent). In NSW for 2002–03 (the last year for which statistics are published), racial discrimination complaints comprised 268 (around 16 per cent) of the yearly total of 1659 complaints, with racial vilification 37 (around 3 per cent). In Queensland, race complaints were 10.6 per cent in 2002–03 and 9.6 per cent in 2001–02. All information sourced from the respective annual reports of the State Commissions and Boards.
9 At <www.humanrights.gov.au/complaints_information/register/>.
10 Amounts obtained in conciliation are not necessarily comparable with amounts awarded as damages (see, for example, Table of Damages in CCH Equal Opportunity Law and Practice para 89-960), as the latter requires the complainant to undertake the risk of litigating, and then to succeed in the task. Where litigation has been relatively unsuccessful, as in racial discrimination, complainants are in a relatively weaker position and are likely to be more willing to settle for a lower amount.
11 Note that Austlii does not contain a complete set of Federal Magistrates Court (FMC) decisions, and some decisions can only be found on the Court’s website at <www.fmc.gov.au>, which indexes cases according to ground or topic. In 2005 the FMC ceased publishing all decisions on its website, so Austlii is now the only source for all FMC decisions.
12 In Re East; Ex parte Nguyen, the High Court held that the RDA specifies its own exclusive remedy and cannot be used to raise a collateral challenge to, for example, criminal proceedings where no complaint of discrimination has been lodged. However, this does not apply in relation to claims that State legislation is inconsistent by reason of constitutional inconsistency, nor, presumably, that another Commonwealth Act is inconsistent with the RDA.
13 In Sharma v Legal Aid (Queensland), Keifel J said (at –):
... It was also pointed out that claims brought under such legislation present special problems of proof, since prejudice is not always apparent and indeed persons discriminating on the grounds of race may not even be aware of them. It was then submitted that the Court should start from a point which assumes the fact of the existence of racism, and that an initial inference of racial discrimination can be drawn based upon knowledge of the existence of the phenomenon in the community. ...
The existence of racism in the community is acknowledged by the legislation in question. A possibility, in a given case, that it may explain a choice made in the appointment of a person, may arise. Whether that possibility can then be converted to a more substantial finding, one which allows an inference that racism in fact operated on the decision-making so as to satisfy the requisite standard, is a question of fact in each case. Counsel for the applicant submitted that an inference could be drawn because of the known existence of racism combined with the fact that the decision in question was one to be made between people of different races. It would seem to me that the two factors identified, considered individually or collectively, raise no more than a possibility that race might operate as a factor in the decision-making.
In this case the evidence could only be said to have raised a real concern in one respect: what was in the minds of two of the panel members in connexion with the ‘public face’ issue. A possibility that it contained an underlying reference to someone of the applicant’s race, as not fulfilling that image, was raised. However a more definite conclusion cannot be drawn.
This decision was upheld by the Full Federal Court in Sharma v Legal Aid Queensland  FCAFC 196.
Ardeshirian v Robe River Iron Associates  HREOCA 2
Batzialas v Tony Davies Motors  FMCA 243
Briginshaw v Briginshaw  HCA 34; (1938) 60 CLR 336
Bropho v Western Australia  FCA 1209; BC200406041
Bropho v Western Australia  FCA 560; BC200502866
Carr v Boree Aboriginal Corp  FMCA 408
Charan v Commonwealth Insurance Ltd  FMCA 50
Chau v Oreanda Pty Ltd & Ors  FMCA 114
Clark v Vanstone  FCA 1105; (2004) 81 ALD 21
Creek v Cairns Post  FCA 1007; (2001) 112 FCR 352
Dao v Australian Postal Commission  HCA 13; (1987) 162 CLR 317
Department of Health v Arumugam  VicRp 42;  VR 319; (1987) EOC 92-195
Djokic v Sinclair & Central Qld Meat Export Co Pty Ltd  HREOCA 16
Dutt v Central Coast Area Health Service (2002) EOC 93-228;  NSWADT 133
Fares v Box Hill TAFE (1992) EOC 92-391
Gerhardy v Brown  HCA 11; (1985) 159 CLR 70; 57 ALR 472
Hagan v Trustees of the Toowoomba Sports Ground Trust (the Nigger Brown grandstand case)  FCA 1615 (FC)
Hagan v Trustees of the Toowoomba Sports Ground Trust (the Nigger Brown grandstand case)  FCA 123 (FFC)
Horman v Distribution Group  FMCA 52
Islamic Council of Victoria v Catch the Fire Ministries Inc  VCAT 2510; (2005) EOC 93-377
Jones v Scully  FCA 1080; (2002) 120 FCR 243
Jones v Toben  FCA 1150; (2002) 71 ALD 629
Mabo v Queensland (1988) 166 CLR 186
Macedonian Teachers Association of Victoria Inc v Human Rights and Equal Opportunity Commission  FCA 1650; (1998) 91 FCR 8
McGlade v Lightfoot  FCA 1457; (2002) 73 ALD 385
McMahon v Bowman  FMCA 3
Michael v State Housing Commission (1996) 45 ALD 1
Monash University v Kapoor  VSC 463; BC9908160
O’Callaghan v Loder (1984) EOC 92-023
Re East; Ex parte Nguyen  HCA 73; (1998) 196 CLR 354
Sharma v Legal Aid (Queensland)  FCA 1699; BC200107543
Sharma v Legal Aid Queensland  FCAFC 196; BC200203336
Toben v Jones  FCAFC 137; BC200303363
Trindall v New South Wales Commissioner for Police  FMCA 2
Vanstone v Clark  FCAFC 189
Victoria v Macedonian Teachers Association of Victoria  FCA 1287; (1999) 91 FCR 47
Victoria v Sinnapan (No 2)  VicRp 52;  2 VR 242
Waters v Public Transport Corp (1991) 173 CLR 349; 103 ALRC 513
Western Australia v Ward  HCA 28; (2002) 213 CLR 1; 191 ALR 1
Griggs v Duke Power Co 404 US 424 (1971)
Anti-Discrimination Act 1977 (NSW)
Disability Discrimination Act 1992 (Cth)
Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth)
Equal Opportunity Act 1984 (Vic)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Human Rights Legislation Amendment Act (No 1) 1999 (Cth)
Native Title Act 1993 (Cth)
Native Title Amendment Act 1998 (Cth)
Racial and Religious Tolerance Act 2001 (Vic)
Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)
Race Relations Act 1976
Race Relations (Amendment) Act 2000
Sex Discrimination Act 1975
International legal material
Hagan v Australia, Committee on the Elimination of Racial Discrimination, Communication No 26/200, views adopted on 14 April 2003, UN Doc CERD/C/62/D/26/2002, at 7.3-8
International Convention on the Elimination of All Forms of Racial Discrimination 1965, 660 UNTS 3
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